Jharkhand High Court
Sushil Kumar Gupta vs State Of Jharkhand And Anr. on 13 August, 2004
Equivalent citations: 2005CRILJ440, [2004(4)JCR47(JHR)], 2005 CRI. L. J. 440, 2005 AIR - JHAR. H. C. R. 64, (2004) 4 JCR 47 (JHA), (2004) 2 JCJR 160 (JHA), (2004) 24 ALLINDCAS 314 (JHA), (2004) 4 JLJR 97
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. This petition has been preferred by petitioner for quashing the order dated 13th July, 2004 passed by Sri Santosh Kumar, Judicial Magistrate, 1st Class Ranchi in Complaint Case No. 350 of 2003, whereby and whereunder, the learned Magistrate has been pleased to reject the petition preferred by the petitioner under the provisions of Section 205 Cr PC praying therein to dispense with his personal appearance during the trial subject to any condition.
2. Counsel for the petitioner submitted that the complainant (OP No. 2) is full brother of petitioner and now become inimical to the petitioner. Only for the purpose of harassment, the complainant has preferred a number of complaint cases against the petitioner including the present complaint petition for the charges under Sections 454, 427 and 380 IPC. The complainant is the eldest son of Sri Anand Swaroop Gupta, who wants to grab the entire property of his younger brother by way of instituting false cases against his father. Sri Anand Swaroop Gupta, brother i.e. the petitioner as also against Vishnu Dayal Gupta and Naresh Kumar Gupta and for the said purpose, he has already filed another Complaint Case No. 46 of 1999, G.R. No. 2560 of 2000. The whole purpose behind filing the false case is that he is trying to grab the entire property by way of blackmailing and pressurizing his father, Sri Anand Swaroop Gupta and the younger brother.
Counsel for the petitioner also submitted that the petitioner is a very busy businessman and cannot give much time to attend the Court. He may be allowed to appear as and when the learned Court feels it necessary. It was further submitted that the petitioner is suffering from acute pain consequent to serious accident resulting in fracture of both of his legs for which he had to undergo rigorous treatment at Delhi and in both of his legs steel rods have been engrafted due to which he is not only disabled from taking up any heavy work of load, but also feels difficulty in standing for a long period. He has been advised for complete rest to his legs and avoid any strain in legs and the waist.
It was submitted that the petitioner having shown sufficient grounds, the Magistrate should have dispensed with the personal attendance of the petitioner and permit him to appear through his pleader. In support of his submission, Mr. Pandey Neeraj Rai, learned counsel for the petitioner relied upon certain cases which are detailed hereunder :
(i) Ravi Singh v. State of Bihar, 1980 Cri LJ 330--Decision of the Patna High Court:
(ii) Ram Harsh Das v. State, 1998 (1) All PLR 495--Decision of the Patna High Court;
(iii) Nadebasi Maji v. State of Bihar, 1999 BCCR 820--Decision of the Ranchi Bench of the Patna High Court And
(iv) Dr. Prem Agarwal v. State of Bihar, 2001 (3) East Cr C 87 (Pat)--Decision of the Patna High Court.
3. Counsel for the OP No. 2 submitted that the petitioner and some other accused had earlier filed a quashing application being Cr. M.P. No. 1056 of 2003 against the order taking cognizance Complaint Case No. 350 of 2003 but it was refused by this Court vide order dated 23rd July, 2004. The Court observed that no ground was made out to interfere with the order taking cognizance or the entire criminal proceeding. The relevant facts and grounds taken in the present case were taken into consideration by this Court In the said Cr MP No. 1056 of 2003. The OP No. 2 has also disputed the fact that the petitioner, Sushil Kumar Gupta is not able to attend the Court physically because of his disability and illness. It was submitted that the petitioner, Sushil Kumar Gupta has lodged four cases against the OP No. 2, namely. Pawan Kumar Gupta as detailed hereunder :
(i) Complaint Case No. 689 of 2000 filed on 17th November, 2000 under Sections 452, 323, 324, 386 and 379 IPC
(ii) Complaint Case No. 224 of 2001 under Sections 379, 467, 468, 471 and 196 IPC
(iii) Lower Bazar P.S. Case No. 36 of 2001 under Sections 379, 467, 468 and 471 IPC and
(iv) Mohammadpur (Gopalganj) P.S. Case No. 32 of 2003 under Sections 341, 379, 323, 504 and 34, IPC.
In all the aforesaid cases, petitioner, Sushil Kumar Gupta had been attending the Court and has given his evidence in the complaint case on oath under Section 202 Cr PC and in those cases, OP No. 2 is attending the Court regularly. It was submitted that if the petitioner Sushil Kumar Gupta is otherwise not busy and physically fit to appear before the Court in all the cases preferred by him, he cannot take plea that he is a busy businessman and physically unfit.
4. It is not in dispute that an accused cannot claim as a matter of right to dispense with his personal attendance under Section 205, Cr PC if the Magistrate finds reasons and grounds, he may dispense with the personal attendance of the accused and permit him to appear through his pleader. The matter concerned is between the accused and the concerned judge. There cannot be categorization of cases where the power to be exercised under Section 205, Cr PC.
5. The question relating to exemption from appearance or dispensation with the personal attendance of the accused fell for consideration before the Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors., (2001) 7 SCC 401, Their Lordships noticed the various provisions of Cr PC including Section 205 and held it would be within the discretion of the Magistrate to grant exemption or dispense with personal attendance of the accused.
In the case of Halen Rubber Industries, Kattaym v. State of Kerala, 1973 Cr LJ 262, Keral High Court held "that in all trivial and technical cases where the accused are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists Courts should invariably exercise discretion liberally to exempt such persons from personal attendance." This was followed by the Patna High Court in the case of Ravi Singh v. State of Bihar, 1980 Cr LJ 330. But the Supreme Court in the case of Lily Begum v. Joy Chandra Nagbanshi, 1994 (2) SCC 39, held that "dispensation of personal attendance on the ground of accused being social worker and known to the village people is untenable."
In the case of Ram Harsh Das v. State of Bihar, reported in 1998 (1) All PLR 495, a Division Bench of the Patna High Court while appreciating the provision under Section 205 Cr PC, observed that the Magistrate can exercise the powers conferred upon him under Section 205 Cr PC even in warrant cases, provided he had issued summons instead of issuing the warrant. The Court further observed in a case where a warrant has been issued as the first instance, the power under Section 205, Cr PC cannot be exercised. The Court further observed that that no hard and fast rule can be laid down for deciding the question of grant or refusal of prayer for dispensing the personal attendance.
The aforesaid decision in Ram Harsh Das (supra) was noticed and followed by the Patna High Court in the case of Dr. Prem Agarwal v. State of Bihar, 2001 (3) East Cr C 87 (Pat).
6. In the facts and circumstances and taking into consideration the nature of allegation, the law laid down by the Division Bench of the Patna High Court and the Supreme Court, as referred above and that only summon has been issued and no warrant has been issued against the accused, this Court in exercise of powers under Section 482 Cr PC allows the application filed by the accused and dispenses with his personal attendance and hereby directs that the accused may appear through his lawyer. It is further directed that the aforesaid benefit be granted to the accused, if he gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the said case, and his counsel will be present in Court, and that the accused has no objection in taking evidence in his absence. If at any time during the course of trial, the Court comes to the conclusion that presence of the accused is required then for the reasons to be recorded by it, the Court may direct the accused to remain in attendance and the accused in such case will attend the Court.
7. This Cr MP is allowed, with the aforesaid observations and directions.